Torres v Pharney Group, LLC

Supreme Court, Westchester County

Decided on April 10, 2026

Index No. 58737/2023

Walter Rivera, J.

The following papers were read and considered in connection with defendant Pharney Group, LLC's ("Pharney") motion pursuant to CPLR 3212, granting summary judgment and dismissing the complaint against defendant, directing the entry of judgment, with prejudice, in favor of defendant, or, in the alternative, pursuant to CPLR 3212 (g), granting partial summary judgment to defendant as to any claim and/or theory of liability as to which the Court finds that plaintiff has failed to raise an issue of fact (Motion Seq. No. 2):

PAPERS NYSCEF Doc. No.

Notice of Motion/Affirmation in Support/Statement of Material Facts/Exhibits A-L 42-59

Affirmation in Opposition/Exhibit 1/Response to Statement of Material Facts 67-69

Affirmation in Reply 71

For the reasons detailed herein, the defendant's motion is denied in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

The instant action asserting a claim sounding in negligence, medical malpractice, and violations of the Public Health Law was commenced by the filing of a summons and complaint on March 30, 2023 (NYSCEF Doc. No. 1). An amended complaint was filed on October 17, 2023 (NYSCEF Doc. No. 16). Defendant filed the instant motion for summary [*2]judgment pursuant to CPLR 3212 (Motion Seq. 2) on August 29, 2025 (NYSCEF Doc. No. 42). The motion was accompanied by an affirmation from Dr. Lawrence Diamond, M.D., who is board certified in family medicine and holds a certificate in geriatric medicine (NYSCEF Doc. No. 45). In his affirmation, Dr. Diamond opined that the care and treatment rendered to the decedent by defendant was within good and accepted standards of nursing home and medical practice and any alleged departures did not proximately cause or substantially contribute to the alleged damages or injuries, including decedent's death. Accordingly, defendant claims there are no material issues of fact precluding the granting of summary judgment in favor of defendant.

In opposition, plaintiff submitted an affidavit from Dr. Karim J. Khimani, M.D., who is board certified in internal medicine and currently serves as the Chief of Geriatric Medicine at RWJBH/Trinitas Regional Medical Center in Elizabeth, New Jersey (NYSCEF Doc. No. 68). In his affidavit, Dr. Khimani opined that the departures from the accepted standard of care, negligence and statutory violations by the staff at defendant's facility were a substantial factor in causing the injuries alleged by plaintiff (NYSCEF Doc. No. 68).

ANALYSIS

Initially, this Court notes that the affirmation submitted by plaintiff's counsel, David Friedman, Esq., in opposition to defendant's motion seeking summary judgment, fails to comport with the recently amended statutory language of CPLR 2106, which provides as follows:

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this __ day of ______, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

The affirmation submitted by David Freedman, Esq., is only made "under the penalties of perjury" (NYSCEF Doc.67). Such affirmations were sufficient under the older CPLR 2106, but effective January 1, 2024, they are no longer legally sufficient to comport with this rule, as amended. The Advisory Committee Notes to CPLR 2106 state, "[w]hile attorneys always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement." (see Zhou v Cent. Radiology, PC, 84 Misc 3d 410, 419 [Sup Ct, Queens County 2024].)

Additionally, since the amended rule includes the word "shall" within its directive, the language set forth thereafter is mandatory and not merely a suggestion. (see Diego Beekman Mut. Hous. Assn. Hous. Dev. Fund Corp. v Hammond, 81 Misc 3d 1244(A) [Civ Ct, Bronx County 2024].) The failure to include the required language as set forth in CPLR 2106 cannot be said to be harmless and renders the affirmation inadmissible and of no probative value (see Zhou at 419; R.F. v L.K., 82 Misc 3d 1221(A) [Sup Ct, Westchester County [*3]2024]).

In Kallo v Kane St. Synagogue, 241AD3d 522 [2d Dept 2025], the Second Department found that a defective affirmation that was missing the required language of CPLR 2106 may be corrected with the submission of a reply affirmation containing the requisite language. Here, a reply affirmation was not filed. As such, the subject affirmation of plaintiff's counsel filed in opposition to the within motion fails to acknowledge the importance and seriousness of the statements made in the affirmation and the consequences of making false statements, as required by the statute (see Zhou at 419; see generally Matter of Grandsard v Hutchinson, 227 AD3d 491 [1st Dept 2024]; Great Lakes Ins. SE v American S.S. Owners Mut. Protection & Indem. Assn. Inc., 228 AD3d 429 [1st Dept 2024]; Fifth Partners LLC v Foley, 227 AD3d 543 [1st Dept 2024]). Accordingly, any facts asserted by plaintiff's counsel in the subject affirmation are inadmissible and lack probative value.

Nevertheless, the Court may properly consider the legal arguments advanced in plaintiff's affirmation as well as the facts and opinions set forth in the properly executed affidavit of plaintiff's expert witness, Dr. Karim J. Khimani.

Negligence claims

Turning to the merits of the case, "[a] party moving for summary judgment must present proof in admissible form demonstrating the absence of any triable issues of fact" (Funk v UPS, 73 AD3d 851, 852 [2d Dept 2010], citing Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (see Alvarez). The evidence must be viewed in a light most favorable to the nonmoving party and it should be given the benefit of all favorable inferences (Gonzalez v Metropolitan Life Ins. Co., 269 AD2d 495 [2d Dept 2000]). "Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact" (Anyanwu v Johnson, 276 AD2d 572, 572-573 [2d Dept 2000]).

"A hospital or medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety" (D'Elia v Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d 848,85- 851 [2d Dept 2008] [internal citations omitted]). A skilled nursing facility moving for summary judgment dismissing a negligence cause of action establishes its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not depart from accepted standards of care with respect to the decedent, or that the alleged departures were not a proximate cause of the decedent's injuries (see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702 [2d Dept 2024], Henry v Sunrise Manor Ctr. For Nursing & Rehabilitation, 147 AD3d 739, 740 [2d Dept 2017], Rosario v Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 AD3d 1426 [2d Dept 2020], J.L. v Sklar, — AD3d —, 2026 NY Slip Op 01952 [2026]). Once defendant makes this showing, plaintiff must submit factual evidence or materials to rebut the defendant's prima facie showing.

Here, the defendant failed to establish its prima facie entitlement to summary judgment as a matter of law. The affidavit submitted by defendant's expert is replete with conclusory opinions that defendant's treatment and care of the decedent was "within good [*4]and accepted standard of nursing home and medical practice as they existed during the alleged negligence" (NYSCEF Doc. No. 45). However, defendant's expert failed to delineate the acceptable standard of care and how each of the treatments, or lack thereof, followed that standard. Moreover, the opinion of said expert witness that the defendant's "claimed acts or omissions...did not proximately cause or substantially contribute to the Plaintiff's decedent's claimed injuries, including death" is equally conclusory and unsupported by detailed facts to support his conclusions (NYSCEF Doc. No. 45).

Alternatively, in arguendo, even if defendant met its burden of proving its prima facie entitlement to summary judgment as a matter of law, plaintiff raised a material and triable issue of fact that would defeat the granting of summary judgment. In that regard, plaintiff's expert detailed the acceptable standard of care and opined how that standard was not met (NYSCEF Doc. No. 68). By way of example, plaintiff's expert raised a material and triable issue of fact as to when and where the decedent suffered a sacrum deep tissue pressure injury (DTPI). While defendant argues that decedent did not have such an injury when he was transferred to Westchester Medical Center on October 28, 2020, and developed it during his stay at Westchester Medical Center from October 28, 2020 to November 5, 2020 (NYSCEF Doc. No. 43), the admissions records from Westchester Medical Center on October 28, 2020 tell a different story.^FN1 Specifically, the admission records indicate that the decedent was diagnosed with a DTPI that "was present at admission" (NYSCEF Doc Nos. 54 & 67). As such, there is a material and triable question of fact which is sufficient to defeat defendant's motion for summary judgment.

Furthermore, the contrasting affirmations of each expert as to whether the standard of care was met amount to a classic case of the battle of the experts that is within the sole province of a jury to decide at trial. In that regard, "[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." (Feinberg v Feit, 23 AD3d 517, 519 [2d Dept 2005] [internal citations omitted].)

Accordingly, the Court hereby denies defendant's motion for summary judgment as related to plaintiff's medical malpractice and wrongful death claims based on negligence.

Claims under PHL § 2801- d

Claims to recover damages for deprivation of rights under the Public Health Law are separate and distinct from, and involve considerations different from, those sounding in negligence (Sullivan v Our Lady of Consolation Geriatric Care Ctr., 60 AD3d 663 [2d Dept 2009]). To prevail on a cause of action under Public Health Law 2801-d, a plaintiff is not [*5]required to establish "a deviation from accepted standards of medical practice nor breach of a duty of care" (Schwartz v Partridge, 179 AD3d 963 [2d Dept 2020]). A cause of action against a nursing home under the 1 The affirmation of plaintiff's attorney states that decedent was admitted to the defendant's facility on October 20, 2020 and remained there until October 28, 2020. However, when discussing the transfer from defendant's facility to Westchester Medical Center, plaintiff's attorney states the transfer occurred on October 28, 2022 (NYSCEF Doc. No. 67, pg. 2). The medical records provided as part of defendant's Exhibit I confirm that the admission to Westchester Medical Center occurred on October 28, 2020, and not on October 28, 2022 (NYSCEF Doc. No. 53). Public Health Law is "in addition to and cumulative with any other remedies available to a patient, the patient's legal representative, or the patient's estate" (Public Health Law § 2801-d [4]).

Pursuant to Public Health Law 2801-d, "[a]ny residential health care facility that deprives any patient of said facility of any right or benefit . . . shall be liable to said patient for injuries suffered as a result of said deprivation" (Public Health Law § 2801-d [1]). "Liability under Public Health Law 2801-d "contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient [internal quotation marks and citations omitted]" (Van DeVeerdonk at 705). Pursuant to the statute, the definition of injury includes, but is not limited to, physical harm, emotional harm, death, and financial loss to a patient (Public Health Law § 2801-d [1]). The statute provides for an award of punitive damages "where the deprivation of any such right or benefit is found to have been willful or in reckless disregard of the lawful rights of the patient" (NY Public Health Law § 2801-d [2]).

A defendant moving for summary judgment dismissing a cause of action alleging a violation of Public Health Law 2801-d has the prima facie burden of establishing that it did not violate the regulations set forth in plaintiff's bill of particulars as the basis for the cause of action, or that if such regulations were violated, none of the alleged injuries were proximately caused by the violations (see Van DeVeerdonk). Defendant may sustain its prima facie burden by submitting evidence demonstrating that plaintiff's alleged injuries did not arise through any action or negligence of its employees (see Russell v River Manor Corp., 216 AD3d 827 [2d Dept 2023].

In the case at bar, defendant failed to meet its prima facie burden demonstrating the deprivation of a right conferred by contract, statute, regulation, code or rule as contemplated by § 2801-d (Henry at 741). Notably, defendant's expert affidavit utterly failed to address whether the standard of care rendered by defendant was in conformity with the requirements mandated by the Public Health Law. Accordingly, the Court hereby denies defendant's motion for summary judgment as it relates to plaintiff's Public Health Law claims.

All other arguments raised on these motions and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

CONCLUSION

Accordingly, it is hereby

ORDERED, that defendant's motion, pursuant to CPLR 3212, seeking an order granting summary judgment dismissing the Complaint against defendant and directing the entry [*6]of judgment in favor of defendant is hereby DENIED; and it is further

ORDERED, that defendant's motion, pursuant to CPLR 3212 (g), granting partial summary judgment to defendant as to any claim and/or theory of liability as to which the Court finds that plaintiff has failed to raise an issue of fact is hereby DENIED.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 10, 2026

White Plains, New York

ENTER:

HON. WALTER RIVERA, J.S.C.